Appeals rebuffed, court orders SUNY to keep LICH open

Appeals rebuffed, court orders SUNY to keep LICH open

Full speed ahead at Brooklyn Supreme Court

By Mary Frost

Brooklyn Daily Eagle

At a hearing on Thursday, Supreme Court Justice Johnny Lee Baynes told attorneys that the Appellate Division had dismissed SUNY Downstate’s appeal of temporary restraining orders (TROs) prohibiting the closure of Long Island College Hospital (LICH).

The news sent a quiet rustle through the capacity crowd of LICH supporters and media jammed into the fourth-floor courtroom for the second day of the hearing pitting SUNY Downstate and the state Department of Health against several different groups suing to keep the hospital open.

Financially troubled Downstate, which acquired LICH two years ago, has been attempting to close the Cobble Hill hospital over the last six months but has faced increasingly stiff resistance from neighborhood residents, hospital staff and elected officials, who are pushing for SUNY to keep LICH open pending transfer to another operator.

Attorney Jim Walden, representing Public Advocate Bill de Blasio, six local civic groups and the wife of a patient, told supporters that contempt proceedings against SUNY, which had been stalled pending the appeal, could proceed.

TROs won by the New York State Nurses Association (NYSNA), 1199 SEIU, the Concerned Physicians of LICH and another patient, represented by Richard Seltzer, have also been upheld.

The vacated appeals were dated July 15, April 1 and June 19, and covered court orders requiring SUNY to allow LICH to provide medical care, including emergency medical services. The TROs forbid SUNY from diverting ambulances or patients, preventing doctors from using their best medical judgement when providing care, depriving doctors or other medical professionals of the resources they need to provide care, restraining hours of operation and more.

Legal wrangling about issues brought up on Wednesday continued during Thursday’s hearing. SUNY’s lawyers forcefully contended that a 90-day notice of hospital closure was for the benefit of the Department of Health (DOH), not hospital employees, patients or the Public Advocate, and both sides argued over the mission of DOH.

SUNY’s contention that the petitioners do not have the “standing” to file suit was again debated. Lawyers for SUNY maintain that none of the parties filing to keep LICH open are within a legal “zone of interest,” and have not been injured by the specific regulation being debated. Attorney Seltzer contended, however, that the petitioners would be injured “by an employment loss linked to a government body failing to do its job.”

Justice Baynes appeared annoyed when a DOH witness "with personal knowledge" of the situation inside LICH that he had asked to appear did not show, and sternly demanded the witness show up on Friday. He also asked if a waiver being given to LICH patients to sign informing them that LICH “was not safe” would be in violation of DOH rules. “If there are violations, DOH will come in and address them,” a DOH attorney said.

An implicit threat of criminal action hung over the proceedings as all parties were notified that a representative of the District Attorney’s Office, Kevin Richie, was in attendance.

As on Wednesday, Justice Baynes pushed for the parties to reach a settlement. “In my quest to try to settle this case, I might permit the parties to try working out a settlement this afternoon.” After a private meeting in his chambers, Baynes adjourned the hearing to “give the attorneys the opportunity to talk.” The hearing will continue Friday morning.

SUNY Downstate spokesperson Robert Bellafiore told the Brooklyn Eagle on Thursday afternoon, "The [Appellate] decision is being reviewed and in the meantime we look forward to the continued proceedings before Justice Baynes. As always, every single medical decision at LICH continues to be based on what's in the best interest of each patient."

Jill Furillo, executive director of NYSNA, said in a statement, “The denial by the appellate court of SUNY's motion for an appeal and stay is another victory for our movement to keep LICH open for care. It's time for SUNY to abide by the temporary restraining orders and stop diverting ambulances from LICH. Every moment they wait to do that, they are putting Brooklyn patients at risk."

Updated at 7:10 p.m. to add details about reinstated TROs.

August 8, 2013 - 4:50pm

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